Exercise room carries risk of liability claims

December 16, 2011|Janet Portman | Rent It Right

Q: We'd like to add an exercise room to our modest apartment complex as a way to attract tenants. But I'm worried about liability. Is there any way I can protect myself from a lawsuit if, for example, someone gets injured and claims that I was negligent in caring for the equipment?

A: You're wise to be thinking ahead about the consequences of adding an exercise room to your property. Like a swimming pool, exercise equipment poses some risk. The machines, even if maintained regularly, can break; tenants might misuse them and injure themselves or others; and there's always the possibility of just plain accidents, no matter how well you maintain the equipment.

A lawyer's answer to such a question is likely to begin with a question about your liability insurance — if you have adequate coverage, you can take some solace there. You may also hear a suggestion that you consider using an "exculpatory clause." That's a more complicated matter.

An exculpatory clause limits someone's responsibility for the consequences of his careless acts in advance, before any harm has occurred. They're usually dressed up in legal jargon, but they mean essentially this: If you get hurt in the future as a result of my negligence (carelessness), you agree now that I won't be responsible.

Until relatively recently, exculpatory clauses were common in residential leases. Countless landlords got tenants to agree not to hold them responsible if shoddy maintenance practices resulted in a tenant's injury. Starting in the 1970s, however, landlords were required to offer fit and habitable housing. Along with that duty came a ban on using exculpatory clauses to absolve the landlord if he fell short. Most states ban them outright, realizing that to allow them would essentially gut the requirement that housing be safe.

Would such a clause, applied to injuries resulting from use of the exercise room, come within a state's ban on exculpatory clauses in general? You would have to check the statute that forbids them. For example, California law bans "... any provision ... of a lease ... that attempts to waive [the tenant's] right to have the landlord exercise a duty of care to prevent personal injury or personal property damage where that duty is imposed by law."

A California court recently looked at just this question. A tenant sued his landlord when he was hurt after falling from a treadmill (an exercise ball was wedged underneath, causing it to tip). Without even looking at who (if anyone) had been careless, the judge sided with the landlord and tossed the case based on an exculpatory clause the tenant had signed, which absolved the landlord from any injuries the tenant might suffer in the exercise room. The trial judge bought the landlord's argument that although he couldn't get out from under the consequences of failing to offer safe housing, he could exculpate himself for "amenities" and for "noncore functions" of a lease. The tenant appealed the decision, but lost when two of three appellate justices agreed with the trial court.

The remaining justice disagreed, pointing out that nothing in the statute limited the ban on exculpatory clauses to only "core" portions of a tenant's leasing experience (whatever that "core experience" might be).

The language of the anti-exculpatory statute is plain, and if the legislature wants to exempt amenities, it (not the judiciary) needs to do so. Those who like to think of California as a den of activist, pro-tenant judges, take note: These appellate justices activated themselves in favor of landlords.